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Transportation & Public Construction Division

Division Description

Overview
Legal Services Provided
Numbers/Trends
Significant Cases
Major Issues

Contact:
PO Box 40113
Olympia, WA 98504-0113
E-mail


Overview

The Transportation and Public Construction Division (TPC) represents and advises the Washington State Department of Transportation (WSDOT) as it designs, constructs, operates and maintains Washington’s highway system and other multi-modal transportation operations, including ferries and rail.  In addition, TPC represents and advises other state agencies, boards and commissions in areas of transportation, eminent domain, contracts, construction, land use, and environmental law.  TPC is composed of 17 attorneys and 13 professional staff.

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Legal Services Provided

TPC focuses on legal work necessary to support WSDOT’s improvement of the state transportation system.  This includes acquiring property for new or expanded highways through negotiation or condemnation; advising project staff on environmental review and permitting, and defending environmental litigation; advising WSDOT’s engineering staff on construction contracting, including innovative contracting methods, and defending challenges to public contracting processes; drafting and negotiating agreements with local agencies; and advising the agency on ways to manage risks associated with development of transportation projects.

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Numbers/Trends

The division’s workload can vary depending on the state's level of investment in new or expanded transportation projects and the level of construction undertaken by client agencies.  There has been dramatic growth in the division’s advice in project construction due to accelerated project planning, mega-project scoping (I-405, SR 520 Floating Bridge, Alaskan Way Viaduct, Washington State Ferries Terminal and Vessel procurement, Sound Transit, etc.), unusual environmental impacts and mitigation strategies, and new project delivery and finance methods (like design-build contracting) which present complex and novel legal questions.

As transportation construction proceeds, the division has also seen growth in its environmental and land use practices as claims arise under the Endangered Species Act, Clean Water Act, State Environmental Policy Act, and National Environmental Policy Act.  Environmental permit streamlining issues and land use requirements from a large number of local jurisdictions faced with state highway construction have also increased demands on our environmental and project litigation teams.

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Significant Cases

United States, et al. v. State of Washington, et al.:  defending WSDOT against claims that state-owned culverts violate the tribes’ treaty right to take fish by reducing available fish habitat.

United States v. Washington State Department of Transportation:  defending WSDOT in a CERCLA action in federal district court in which the United States is seeking $10 million in administrative costs and prejudgment interest related to the cleanup of Thea Foss Waterway in Tacoma.
   
Campbell v. Jilik and WSDOT:  defending WSDOT in federal action brought under the National Environmental Policy Act challenging the environmental compliance of the project that will replace the south end of the Alaskan Way Viaduct. 

Seattle Citizens Against the Tunnel v. WSDOT:  defending WSDOT and City of Seattle in a state action under the State Environmental Policy Act regarding the ongoing environmental review of the Central Waterfront portion of the Alaskan Way Viaduct replacement project. 

Union Elevator v. WSDOT:  representing WSDOT before the Washington State Supreme Court against the claim that the State waived its sovereign immunity and consented to pay interest on payments made for relocation assistance.

Freeman v. Gregoire: defending of the Office of the Governor and the Secretary of Transportation in an original action before the Washington State Supreme Court regarding Sound Transit’s plan to construct and operate a light rail system on Interstate 90 between Seattle and Bellevue.

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Major Issues

Environmental Issues:  As WSDOT projects continue to impact both the natural and built environment, the division continues to see growth in its advice and litigation caseload related to  environmental review and permitting. 

Washington State Ferries:  Division attorneys continue to work collaboratively with the Washington State Ferries, U.S. Coast Guard, Washington State Patrol, and other agencies to assess federal security guidance for passengers, terminals and vessels in light of state constitutional protections.  Ferry procurement has seen increased demands for legal services.

Accelerated Projects/Changing Project Delivery:   With the current pressing demands to deliver the transportation projects by certain dates, and the need for expansion and maintenance projects to happen quickly to maximize economic stimulus and restore needed infrastructure, the division has advised project managers on a wide variety of mega-project design-build issues, risk allocation, innovative construction claims processes, unique financing arrangements, and multi-party operations initiatives with private and public parties, such as Sound Transit.

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